THE SOTOMAYOR AND KAGAN NOMINATIONS AND THE US SUPREME

COURT

C H R I S T I N E N E M A C H E C KD E PA R T M E N T O F G O V E R N M E N T

T H E C O L L E G E O F W I L L I A M & M A RYO C T O B E R 2 8 , 2 0 1 0

Choosing Justices 

Obama’s Supreme Court Nominations

•50 years old•Solicitor General of the United States, 2009-2010•Dean of Harvard Law School, 2003-2009

Sonia Sotomayor

Elena Kagan

•56 years old•Judge, US Court of Appeals, Second Circuit 1998-2009•Judge, US District Court, Southern District of New York 1992-1998

The Retirements

Associate Justice John Paul Stevens Appointed by President Ford in 1975 Third longest serving justice Retired June 2010

Associate Justice David Souter Appointed by President Bush (41) in

1990 Retired June 2009

Presidential Strategy in Appointing Supreme Court Justices

Informational & Political strategies

Limit uncertainty about the future behavior of nominee (informational strategy)

Limit uncertainty about the nominee’s confirmation prospects (political strategy)

Choosing a Nominee

There are certain factors that constrain all presidents in making an appointment to the Supreme Court

Informational Strategy Factors Presidents choose ideologically proximate nominees, particularly

when they are less constrained by the Senate confirmation process Experience in public service provides presidents useful information Political activism makes a candidate less likely to be chosen by the

CourtPolitically Strategic Factors

Presidents are more likely to choose candidates endorsed by members of Congress

Public sector experience makes presidents less likely to choose a candidate when they are more constrained by the Senate

The Recent Vacancies

Justice Souter Early indications of his plan to retire came when he

didn’t hire law clerks for the October Term 2008 Announced his retirement on May 1, 2009

Justice Stevens Only hired one clerk for October Term 2009 Announced his plan to retire on April 9, 2010

Political Context in which Vacancies Arose

Souter vacancy President had near super-majority in the Senate when

he chose Sotomayor; super-majority by confirmation hearings

Obama approval ratings higher than in first 100 days—66% approval ratings

Willingness to expend political capital?Stevens vacancy

Senate Democrats lost their super-majority with Scott Brown’s election to replace Sen. Ted Kennedy

In week in which Stevens announced retirement approval ratings had dropped to 47%

Decreasing political capital

What Can We Learn from the Sotomayor Appointment?

Justice Sonia Sotomayor Assistant District Attorney New York County (prosecutor) from 1979-

1984 Nominated to U.S. District Court SDNY by Pres. George H.W. Bush in

1991 Nominated to 2nd Circuit Court of Appeals by Pres. Clinton in 1998 Pres. Obama nominated Sotomayor to USSC May 26, 2009

The Selection Process Very tightly controlled in the White House—becoming more common Political calculations Consultations with senators

The Confirmation Process The hearings Filibuster threats? The confirmation vote 68-31

What Can We Learn from the Kagan Appointment?

Justice Elena Kagan University of Chicago Law School 1991-1995 Clinton White House 1995-1999 (Associate Counsel, Deputy

Assistant for Domestic Policy, Deputy Director of Domestic Policy Council)

Harvard Law School (Professor 1999-2003, Dean 2003-2009) Solicitor General of the United States 2009-2010

The Selection Process Obama had been through the process only one year earlier Already had a list of candidates to consider More focused process

The Confirmation Process The hearings Confirmation vote 63-37

Important Implications of Changes on the Court

Ideological Change?For the first time, there are no Protestants on

the Supreme CourtStevens was a strong voice for the minority

viewpointStevens was an effective coalition builderJustice Kennedy could now be the senior

justice in a five person majority that does not include Chief Justice Roberts

Potential for Vacancies in Near-Term

The Current Court: Ruth Bader Ginsburg, 77 Antonin Scalia, Anthony Kennedy, 74 Stephen Breyer, 72 Clarence Thomas, 62 Samuel Alito, 60 John Roberts, 55

Political Factors: 2010 midterm elections Potential for successful nominations in 4th year of term Obama’s success generally with judicial nominations The confirmation environment